The State V. Holly. South Carolina, or re-enacted the clauses in totidem verbis ; the offence was the same in either case; and the court could be at no loss, for the nature and extent of the punishment, being declared a felony without benefit of clergy. The Judges, after considering the case fully, were unanimously of opinion, that the making and presenting the order in this case, came within the meaning of the act, and constituted the offence of forgery. That no particular or precise form was necessary; that it was sufficient, if it was false and forged, and calculated to deceive and defraud. That it was not necessary, that the goods should be delivered in order to complete the offence; the presenting of the order and handing of it to Coleman, was an uttering within the words of the law, although stopped by Coleman on suspicion of its falsity; and that West's case, tried in Charleston in 1785, had settled the doctrine in this state. The order in that case was positive, and the goods were desired to be charged to the account of William Washington, the supposed drawer of the order; so in the present case, the order is positive also, and the goods are desired to be charged to Charles Evans, the supposed drawer; there is no ambiguity or uncertainty in either of the cases. In Mary Mitchell's case, quoted from Foster, there was a doubt whether it was a request, or an order within the statute: "Let the woman have (the things mentioned) and he "(the supposed signer of the paper) would see them all paid.” This appeared to the judges a doubtful case, and the statute being a highly penal one, the majority of them gave it the mildest construction, though one or two of them thought it came under the statute. But on the second ground, they were all of opinion, that the judgment ought to be arrested; the indictment states the offence to be against the British statute made of force in this state, when in fact there is no such statute made of force here. If the indictment had concluded against the act of the legislature, in such case made and provided, it would have been good; but as it concludes against a Bri tish act of parliament, which never was in force in this country, it is vitious, and the court cannot by intendment say that the British act of parliament intended to have been made of force here, means an act of assembly against the offence of forgery. In all prosecutions on penal statutes, especially where the life of a man is concerned, nothing should be left to intendment, or presumption in the pleadings; every thing in them should be precise, certain and definite, so as to leave no room for uncertainty or ambiguity. Rule for arresting of the judgment made absolute, and the prisoner was discharged. Present, WATIES, BAY, JOHNSON, RAMSAY and TREZE VANT. The State V. Holly. THE STATE against HARDY HARDING. HORSE-STEALING. Columbia, 1800. of a juryman shall never be impeached by an affidavit, A case tried before Mr. Justice RAMSAY, in Pendleton The integrity district, where the prisoner was convicted of the offence. He was ordered down to Columbia, in order to be present at the argument on a motion for a new trial on his behalf. Mr. Gist, on the part of the prisoner, moved for a new trial on three grounds. unless a copy of it has been duly served on him, that he might have an opportunity of exculpating himself. The discovery of new 1. Misconduct on the part of the foreman of the jury who tried the cause, in saying before the trial, "By God "he was one of the jury who was to try the prisoner, and evidence after "he would hang him at all events." 2. That he had discovered new evidence since the trial, which, if it had been produced, would have evinced the prisoner's innocence. trial and conviction, not a good ground for trial. 2 new The State V. Harding. of Drayton v. Thompson, ante, o vol. 1. p. 263. Riley's edit. 3. That the evidence offered to the jury, was not suffi cient to warrant the conviction. After hearing the arguments of the counsel on all the different points, the judges were unanimously of opinion, on the first ground, that no affidavit should be received on a motion of this kind, to call in question the integrity of a juryman, or impeach his verdict, unless a copy of it had been served upon him, before the rising of the court; as had been laid down in Duestoe's case, for murder, ante, vol. 1. p. 377. Riley's edit. and also in Simpson's case, who was tried for negro-stealing at Camden; in order that such juryman might have an opportunity of exculpating himself, or otherwise satisfying the court, that he had not been guilty of any such misconduct as he had been charged with; and this was due, as well to the character of the jurors of the country, as to the cause of justice itself. Secondly. That the discovery of new evidence after trial, (which is so frequently made a ground on motions for new trials,) was not a good ground for a new trial; because, on a sufficient affidavit of the absence of witnesses in criminal, See the case as well as in civil cases, the court will always postpone the trial in order to give the prisoner an opportunity to procure their attendance, and be better prepared at the next court; and that it might have a very mischievous tendency, to establish a precedent of this kind, after a trial and conviction, and after all the evidence on the part of the state had been fully disclosed; as it was easy to foresee, that a man whose life was in danger, would in every case, even to gain time, make use of a pretext of this kind to create delay; but more especially by the assistance of confederates, he might be enabled to procure unprincipled men to be witnesses, to contradict the evidence on the part of the state, and thereby defeat the ends of justice. Thirdly. That as the judge who tried the cause, had reported from his notes that the evidence was very strong against the prisoner, there was not the least shadow of reason for granting a new trial on that ground. The motion for a new trial, was therefore refused, on all The State the grounds. Harding. After which, sentence of death was pronounced by the judge who tried the prisoner, he was remanded back to the gaol of Pendleton, and was executed agreeably to his sentence. Present, WATIES, BAY, JOHNSON, RAMSAY and TREZE VANT. V. POURIE and DAWSON against The Rev. HUGH FRaser. ASSUMPSIT for goods sold, &c. 96%. sterling. at Georgetown, April, 1800, before BAY, J. Tried In this case it appeared, that Pourie, one of the plaintiffs, did business as a factor, in the sale and disposal of crops, &c. independent of the mercantile transactions of the house of Pourie and Dawson; and that the defendant had consigned rice to him for sale, to a much larger amount than the debt claimed in this suit; and that while the rice was in his hands, he took up goods from the house of Pourie and Daw. goods, will not authorize the factor to take up goods in his name and on his account from a merchant, unless specially authorized for that purpose; though a planter may by a aet ratify such contract made with a merby his factor chant for goods. But son, to the amount of 961. which he sent to the defendant Fraser. That some time afterwards, Fraser and subsequent Pourie came to a settlement about the rice, and Pourie gave his bond for the balance of the proceeds to Fraser; but in this settlement, this 967. was not carried into the account. Pourie, in a short time subsequent to this settlement became an omission insolvent, and took the benefit of the insolvent debtors' act. Whereupon, Mr. Dawson, the solvent copartner, instituted this suit for recovery of this account entered in the books of Pourie and Dawson. The defence set up in this case, was, that Fraser had never authorized Pourie to take up goods in his name from of such merchants? ac count in a set tlement be tween a planter and his factor will not amount to any such ratifica tion of the contract with the merchant. Pourie and Fraser. any person or persons whatsoever. That it was true, he had sent him his crop of rice for sale, and had ordered him to send him up the articles mentioned in the account, which he intended should be paid for out of the proceeds of the rice; but never had it in contemplation, that his factor should run him in debt, or pledge his credit with any person, or to any amount whatever; and that the omission to give credit for the amount of this account, when he took Pourie's bond, was a mistake in the hurry of settling a long account which had subsisted between them. The jury, under the direction of the judge, gave a verdict for the defendant; and this was a motion for a new trial, on the ground of misdirection, and as a verdict against law. Mr. Gaillard, in favour of the motion, insisted, that the credit was given to Fraser by the house of Pourie and Dawson, and the entries in their books proved it; and it was not denied, but that the goods went into Fraser's possession. That the entries in merchants' and tradesmen's books had long been admitted as evidence of the contract between them and their customers in this country, under the act of assembly; and this case ought not to be an exception to that rule. That Fraser himself, by his settlement with Pourie, and taking his bond for the balance of the sales of his rice, had confirmed this contract, if any doubt could arise on that head before, by not taking it into the account on that settlement. That Fraser had afterwards sued Pourie on this bond, which reduced him to insolvency; and obliged him to take the benefit of the insolvent debtors' act, which was in law a release of the debt. Mr. Deas, for defendant, in reply, admitted the general doctrine, that entries in merchants' and tradesmen's books were evidences of contracts in this country, where customers were in the habits of dealing with them. But this was a case of a very different complexion. Here the ac |